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Unformatted text preview: Week Five
Week
Chapter 5 - Negligence
Chapter
*Negligence is an unintentional tort.
*The elements of a negligence suit.
* The defendant owes a duty to the plaintiff. *Is there a duty owed?
*If so, what is the duty?
* Defendant breached their duty. * Causation. *Factual causation, and
*Foreseeable causation.
*Plaintiff has damages.
* Defendant’s duty. *Does defendant owe a duty?
*A moral obligation does not, in itself, create legal liability.
*A legal duty must exist.
*If there is a duty owed, that duty is to act as would a reasonable person under the circumstances.
*The circumstances can depend upon the identity of the defendant and their particular expertise and skills, which helps determine what standard of care are they held to.
*Circumstances can also include past events, weather, the identity of the plaintiff and many other factors.
*The “reasonable” standard of care is often proven using expert witnesses who can testify as to what the defendant should have done under the circumstances – an issue of fact.
* Defendant’s breach of duty. *Once plaintiff has proven what defendant should have done, they next must prove that defendant did not meet their required standard of care – that they did not act reasonably.
*This is often proven using witnesses with personal knowledge – an issue of fact.
* Causation *If the breach is proven, it must have caused plaintiff’s damages.
*The cause must be both factual and foreseeable.
*Factual cause
*Defendant’s breach of duty must have started the chain of events that led directly to plaintiff’s harm.
*A break in that chain can cause a failure of the cause element.
*Foreseeable cause
*That a reasonable defendant would have known that plaintiff’s harm would result from defendant’s breach.
*If the plaintiff’s particular harm is too remote, the defendant’s breach was not the foreseeable cause of that harm.
* Damages *Many different kinds of harm can be part of the recoverable damages in a negligence case.
*Actual financial losses, such as:
*Loss of wages, for time out of work;
*Doctor and hospital bills;
*Future out­of­pocket expenses.
*Pain and suffering
*Physical pain and suffering
*Emotional distress.
*Punitive damages are generally not recoverable, unless defendant’s conduct was “gross” negligence – acting with a reckless disregard for the safety of others.
*As long as the harm is foreseeable, a plaintiff can sue, so the plaintiff need not be someone who contracted with the defendant.
*Another circumstance that can affect the duty owed to a plaintiff, can be the identity of the plaintiff, where the defendant is an owner or operator of a business premises.
*Invitees and licensees are owed the duty to protect from any foreseeable dangerous condition.
condition.
*An invitee is one who enters defendant’s premises with authority and for the reason the premises are open to the public.
*Includes customers, guests, employees and vendors making deliveries.
*Includes one who accompanies a customer and is also there for the reason defendant’s premises are open, i.e. they brought a date to the restaurant. The date is also an invitee.
*A licensee is anyone else who has the authority to enter defendant’s premises.
*Includes health department and other government inspectors, fire safety and police personnel answering a call, or an employee who comes in to pick up their paycheck on their day off.
*There is also an implied (by law) license to all of the general public to enter the premises of an innkeeper or restaurant, and they are therefore considered licensees.
*To protect invitees and licensees, the premises owner/operator must go looking for dangerous conditions.
*This is also called the duty of “active vigilance.”
*Defendant can’t wait for a danger to make itself known, as they must act reasonably to find the problem before it causes harm.
*This duty will include repair of and warning about the dangerous condition, as would be reasonable under the circumstances.
*A trespasser is one who enters the defendant’s premises without authority.
*A trespasser is owed the duty not to intentionally or recklessly harm.
*Intentional harm – can’t set traps for a trespasser.
*Reckless harm – gross negligence or acting with a reckless disregard for the safety of others. *A trespasser that is a child is owed essentially the same duty as that owed to an invitee or licensee.
*A premises owner/operator must protect a child, even if they are trespassing, since the child is considered unable to understand the nature of dangers they might encounter.
*This concept is discussed as the Attractive Nuisance Doctrine on page 164 of the text.
*This duty is the reason that a homeowner must protect trespassing neighborhood kids from the homeowner’s swimming pool.
*As far as a negligence case is concerned, there is generally no duty owed to anyone who does not enter the premises.
*Harm sustained by someone off­premises is not foreseeable by the premises owner/operator.
*There is no relationship between the premises and the person who is off­
premises, until they actually enter.
*Strict liability is a different category of tort from unintentional torts.
*There is no issue of intent, reasonableness, forseeability or even duty.
*This category of tort includes strict liability, strict product liability, dram shop act liability and an innkeeper’s absolute liability for the loss of guest property.
* Strict liability *Elements of the lawsuit:
*Defendant is engaged in an ultra­
hazardous activity.
*That activity caused plaintiff’s harm.
*None of the elements of a negligence caes are needed here.
*Activities that would be considered ultra­
hazardous:
*Handling of explosives, which would include putting on a fireworks display.
*Use and storage of hazardous chemicals, which may include chlorine, ammonia and which may include chlorine, ammonia and
other materials used for cleaning, or for sanitizing pools and spas.
*Keeping of dangerous or vicious animals.
*Siegfried and Roy’s tiger show that used to appear in Las Vegas would be an example of this activity.
*This might also apply to a dog brought into a pet­friendly hotel, if the dog is considered a vicious animal as a matter of law.
*The defendant could not argue they are not liable because they acted reasonably or because the harm was not foreseeable. These issues are irrelevant in strict liability.
*Strict Product Liability
*Elements of the lawsuit:
*A product has a defect (in design, manufacture, instructions for use or assembly, or insufficient warnings.
*The defect creates a dangerous condition.
*The defect existed when the product left defendant’s control.
*The defect caused plaintiff’s harm.
*If a restaurant serves a burger with glass in the burger patty, but the patty came pre­
made from a distributor, the restaurant might not be negligent. It acted reasonably and had no reason to know of the glass. On the other hand, It would still be liable for strict product liability, since the glass was a defect which made the burger dangerous and caused the harm.
*Respondeat Superior *Whenever an employee is performing the duties of his job, he is acting on behalf of the employer, so the rule is..
*An employer shall be liable for the tort of an employee where that tort was committed within the scope of their employment.
*This concept gives a plaintiff an additional party to sue (the employer), even though that party didn’t actually commit a harmful act.
act.
*It is generally easier to sue the employer for negligent acts of the employee, since intentional wrongs are less likely to be within the scope of the employee’s job, though the employee might be liable for their own act of negligent hiring of a violent offender who causes harm to a customer.
*Respondeat Superior does not apply to the acts of an independent contractor, so obviously the hiring party would rather that the hired party not be considered an employee.
*It would be up to a court to determine whether the hired party was an employee based upon a number of factors, some of which are mentioned in the text.
*Where the duty performed by the independent contractor was owed by the hiring party in the first place, there is a strong possibility that the hiring party will remain liable, since the duty was non­
delegable.
*Generally there is no duty to aid others in distress, but many states have created a duty of a business owner to give aid to invitees in peril.
*This creates an additional duty to invitees from that which was discussed earlier in this material.
*The aid required may be to give actual physical aid, or to simply dial 911 – it varies from state to state – which would also be the case if a restaurant customer is choking due to their own fault.
*Otherwise, there is still no duty to aid another in peril.
*Conversely, voluntarily taking on a duty to another can result in liability if the duty is carried out in such a way that harm is caused, so most people would not want to give aid in an emergency.
*To encourage people to give aid, state good samaritan laws generally protect those who samaritan laws generally protect those who
give such aid from legal liability, so long as they are not grossly negligent.
*Where the duty performed by the independent contractor was owed by the hiring party in the first place, there is a strong possibility that the hiring party will remain liable, since the duty was non­
delegable.
*In many states, another duty required by statute is that a heimlich maneuver poster must be posted in a conspicuous place, though liability for the failure to post is usually a fine.
*Defenses
* Contributory or Comparative Negligence: *If a plaintiff was also negligent, thus causing part of their own harm, the old majority rule of Contributory Negligence was that it barred the plaintiff’s claim – it was a full defense despite the evidence of defendant’s fault.
*Comparative Negligence is the current majority rule, which allows the court to apportion the blame according to the fault of the parties – it is a partial defense.
* Assumption of Risk *Assumption of Risk is a full defense and the plaintiff would generally not recover if the defense is used successfully.
*The elements of this defense are:
*Plaintiff knew of a risk involved in engaging in a certain activity;
*Plaintiff understood (or should have understood) the risk; and
*Plaintiff chose to engage in the activity despite therisk.
*Contributory/Comparative Negligence is an available defense to a negligence lawsuit, but not for strict liability lawsuits.
*Assumption of Risk is an available defense in either negligence or strict liability suits.
* Plaintiff’s misuse of the product can also be a defense in a strict product liability case.
a defense in a strict product liability case. ...
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